THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

Opinion of the Court

SULLIVAN, Judge:

On April 12 and May 22-24, 1995, appellant
was tried by a general court-martial composed of officer members at Fort
Gordon, Georgia. Contrary to his pleas, he was found guilty of maltreatment
of a subordinate, as well as two specifications each of conduct unbecoming
an officer by wrongfully engaging in sexual intercourse with a subordinate
and of fraternization, in violation of Articles 93, 133, and 134, Uniform
Code of Military Justice, 10 USC §§ 893, 933, and 934, respectively.
His adjudged sentence of dismissal was approved by the convening authority
on September 19, 1995, and the Court of Criminal Appeals affirmed in an
unpublished opinion dated November 14, 1996.

On June 20, 1997, this Court granted review
of the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING,
OVER DEFENSE OBJECTION, THE AUDIO TAPE[S], PROSECUTION EXHIBITS 4 AND 1.

We hold that the military judge did not abuse
his discretion in admitting as evidence the audio tapes which purportedly
contained incriminating telephone conversations between appellant and the
alleged victim. Mil.R.Evid. 901, Manual for Courts-Martial, United States
(1995 ed.); seeUnited States v. Fuentes, 563 F.2d 527, 531-32
(2d Cir. 1977)(flexible rule for admission of audio-tape evidence).

Nearly all the Charges and underlying specifications
against appellant arose out of a sexual relationship between appellant
and a female soldier, Specialist (SPC) Daugherty. Before trial, defense
counsel moved to suppress tape recordings of two telephone conversations
between appellant and SPC Daugherty on the grounds that they were not properly
authenticated. As the proponent of the evidence, the Government sought
to properly authenticate the audio tapes through the testimony of several
witnesses.

SPC Daugherty testified that she was given
"a wire" by Sergeant First Class (SFC) Vega, her boyfriend, in
order to tape record a telephone conversation between SPC Daugherty and
appellant. SFC Vega hoped to record incriminating statements by appellant
to prevent his retaliation against them for their romantic relationship.
SPC Daugherty stated that she attempted to record a conversation when appellant
later telephoned her. She further testified that she taped the initial
conversation with appellant but that her phone rang again immediately after
her telephone conversation with appellant concluded. Unfortunately, the
tape recorder remained on. Once SPC Daugherty realized that this telephone
call was from SFC Vega, she "stopped the tape player" and then
"made another tape the second night [appellant] called." This
second conversation was recorded on the same tape as the first one.

SPC Daugherty testified that these recordings
were made on January 6 and 7, 1994. She further admitted that she deleted
one part of the tape that concerned a matter which she did not want SFC
Vega to hear. In addition, SPC Daugherty asserted that the tape was stolen
from her house by a friend of hers (SPC Boyd) who had visited SPC Daugherty’s
house to make a long distance phone call. SPC Daugherty and SPC Boyd were
both members of a rehabilitation program. According to SPC Daugherty, SPC
Boyd stole the tape in an apparent effort to blackmail appellant. Two days
after the tape disappeared, SPC Boyd returned it to SPC Daugherty at a
Burger King restaurant. When SPC Daugherty returned home, she immediately
made a copy of the tape. She could not "recall" whether SPC Boyd
had made any changes to the tape while it was in his possession.

SPC Daugherty stated that, over the next couple
of months, she kept one tape in her attic and the other in the trunk of
her car. In March of 1994, she gave one of the tapes to MAJ Sellen after
he told her that she "could be held with obstruction of justice"
if she refused to turn it over to him. SPC Daugherty later turned over
a second tape, the original, when she took "it to the MPI Station
as they had requested it."

Prior to trial, defense counsel made a motion
to suppress as evidence the two tapes of the purported telephone conversations
between appellant and SPC Daugherty. In these conversations, appellant
made certain incriminating statements concerning an unlawful sexual relationship
with her. Defense counsel objected to admission of the tapes on the ground
that they were not properly authenticated in accordance with several federal
court of appeals decisions, including United States v. Tarantino,
846 F.2d 1384, 1411 (D.C. Cir. 1988); United States v. Anderton,
679 F.2d 1199, 1202 (5th Cir. 1982); United States v. McMillan,
508 F.2d 101 (8th Cir. 1974). He particularly argues that these
cases establish "a seven-pronged test" for authenticating an
audio tape and that the record shows four of those prongs were not met
in this case.

The military judge admitted the tapes and found
that they were adequately authenticated. Specifically, the military judge
stated:

MJ: This court finds the tape recording, which
is the subject of this motion, to have been adequately authenticated to
the extent that the court members can find the evidence to be what it purports
to be, that is, the tape recording of two telephone conversations between
Specialist Daugherty and the accused. I appreciate the Defense Counsel’s
bringing my attention to the law within the Fifth and Eighth Federal Circuits
concerning the admissibility of tape recordings; however, this court does
not totally agree with a rigid application of the seven part criteria.
The Military Rules of Evidence intend that a liberal - liberal view of
evidence should be taken by the court. More evidence is to go to the factfinder
so that they can give the evidence the consideration it deserves. Specialist
Daugherty did testify that she has listened to the complete tapes of Prosecution
Exhibit 1 and Appellate Exhibit X and has indicated that Appellate Exhibit
VII is a fair and accurate representation of the contents of the taped
telephone conversation. From this, the court concludes that Specialist
Daugherty has adequately authenticated the tape recordings presented in
court at least as duplicate originals of the taped conversations. The court
is also of the opinion that the facts that the tape was stolen for two
days and parts of the conversation were either erased or were not recorded
does not affect the authenticity of the recording, but may affect how much
credence the members will give to the tape. The tape does apparently
contain a substantial amount of the purported conversation and voice identification
of the speakers has adequately been established by Specialist Daugherty,
Mrs. Wilson, and the accused’s wife. The discrepancies within the tape
and surrounding the taking and preservation of the tape are matters that
may affect the weight to be given to the evidence, but they do not affect
its admissibility. I would also mention that the last phrase of the U.S.
Code Section cited by the defense, that is, "or for the purpose of
committing any other injurious act," was deleted from the statute
in 1986. The court finds the statute to be a criminal statute, not a rule
of evidence. The court also finds that the tape was made to keep the accused
from bothering Specialist Daugherty and Sergeant First Class Vega, and
this purpose is outside the language of the statute. The court, therefore,
denies the defense motion to suppress or rule inadmissible the purported
telephone conversation between Specialist Daugherty and the accused.

(Emphasis added.)

___ ___ ___

On appeal before this Court, appellant
asserts that "[t]he federal circuits have established essentially
a seven-pronged test for admissibility of a taped conversation." He
delineates these prongs as follows:

(1) That the recording device was capable of
taping the conversation offered in evidence;

(2) That the operator of the device was competent
to operate the device;

(3) That the record[ing] is authentic and correct;

(4) That changes, additions or deletions have
not been made in the recording;

(5) That the recording has been preserved in
a manner that is shown to the court;

(6) That the speakers on the tape are identified;
and

(7) That the conversation elicited was made
voluntarily and in good faith, without any kind of inducement.

Final Brief at 3-4.

Appellant then cites a portion of the military
judge’s ruling on his pretrial motion to suppress and asserts that the
military judge "ignored the seven-pronged test espoused in the federal
case law." He particularly states:

As can be seen, the military judge ignored
the seven-pronged test espoused in the federal case law. For example, prong
three is not satisfied because the tape is not "correct," and
may not be authentic. Prong four is not satisfied because changes and deletions
had been made to the tape.

The military judge, however, made no attempt
to evaluate the significance of the omitted or erased portions. Unbelievably,
the military judge never even listened to the tape recording. Without such
an analysis, his ruling on the tape’s admissibility was improper.

Id. at 4-5.

We disagree that appellant’s convictions should
be overturned on these grounds.

(a) Pretrial, trial, and post-trial procedures,
including modes of proof, for cases arising under this chapter triable
in courts-martial, military commissions and other military tribunals, and
procedures for courts of inquiry, may be prescribed by the President by
regulations which shall, so far as he considers practicable, apply the
principles of law and the rules of evidence generally recognized in the
trial of criminal cases in the United States district courts, but which
may not be contrary to or inconsistent with this chapter.

(b) All rules and regulations made under this
article shall be uniform insofar as practicable.

(Emphasis added.)

The President, as constitutionally authorized
by Congress, promulgated the Military Rules of Evidence, which include
a rule for authentication of evidence at courts-martial. SeegenerallyUnited States v. Scheffer, ___ U.S. ___, 118 S.Ct. 1261 (1998).
Accordingly, federal case law notwithstanding, our concern is what the
Military Rules of Evidence say concerning authentication of evidence at
courts-martial.

Mil.R.Evid. 901 initially states in this regard:

Rule 901. Requirement of authentication
or identification

(a) General provision. The requirement
of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.

(Emphasis added.)

This rule is the same as Fed.R.Evid. 901. It
embraces the well-established view that authentication is a component of
relevancy (evidence admitted as something can have no probative value unless
that is what it really is). Moreover, it requires a preliminary determination
by the judge that sufficient evidence of authenticity exists to present
the authenticity question to the members for their ultimate factual determination.
SeegenerallyUnited States v. Sliker, 751 F.2d 477
(2d Cir. 1984); seeRicketts v. City of Hartford, 74 F.3d
1397, 1411 (2d Cir. 1996)(judge’s discretion to exclude evidence on authenticity
ground is limited to deciding whether sufficient proof exists for a reasonable
juror to determine authenticity). It suffices to say that these same principles
are applicable at courts-martial and, accordingly, federal court of appeals
decisions applying these principles would be most helpful. SeeUnited
States v. Richendollar, 22 MJ 231 (CMA 1986).

Nevertheless, we do not accept appellant’s
argument that the seven-prong test of Anderton constitutes the law
in the federal circuits. A well known federal judge and evidentiary expert
postulated a markedly different view of the state of federal law. He noted
that the multi-prong approach urged by appellant is followed in the Third
and Eighth Circuits, but a considerably less formalistic and more flexible
approach is followed in the Second, Fifth, Seventh, Ninth, Eleventh, and
District of Columbia Circuits. 5 J. Weinstein and M. Berger, Weinstein’s
Federal Evidence § 901.07[3][a] (2d ed. 1998). We agree. SeegenerallyUnited States v. Fuentes, supra.

We further note that Mil.R.Evid. 901(b)(5)
particularly addresses authentication of voices on tape recordings. It
expressly contemplates the more flexible approach to authentication of
this type of evidence. It states:

(b) Illustrations. By way of illustration
only, and not by way of limitation, the following are examples of authentication
or identification conforming with the requirements of this rule:

* * *

(5) Voice identification. Identification
of a voice, whether heard firsthand or through mechanical or electronic
transmission or recording, by opinion based upon hearing the voice at
any time under circumstances connecting it with the alleged speaker.

(Emphasis added.)

In sum, our military rules of evidence permit,
but do not require, consideration of the seven prongs for authentication
cited by appellant as factors in a judge’s or the members’ authenticity
determinations. Accordingly, we reject appellant’s general argument that
the military judge erred by failing to strictly follow selected federal
decisions in making his authenticity determination. United States v.
Fuentes, supra.

Applying our own standard for authentication,
we further conclude that there was sufficient evidence for the judge to
present the authentication question to the members. At issue was whether
the tapes in question contained a telephone conversation between appellant
and SPC Daugherty as claimed by the prosecution. In this regard, we note
that SPC Daugherty testified as to the dates and content of the telephone
conversations, the manner of the recordings, and her recognition of her
own and appellant’s voice on the tapes. SeeUnited States v.
Lance, 853 F.2d 1177, 1181-82 (5th Cir. 1988). In addition,
Ms. Wilson, a civilian voice-print examiner concluded that the tapes contained
conversations between appellant and SPC Daugherty. In particular, Ms. Wilson
testified that she found 20 matches of SPC Daugherty’s voice on the tape
and over 90 matches of appellant’s voice. SeeUnited States v.
Polk, 56 F.3d 613, 631-32 (5th Cir. 1995); United States
v. Sandoval, 709 F.2d 1553, 1554-55 (D.C. Cir. 1983); Mil.R.Evid. 901(b)(5).
Finally, appellant’s wife and members of his command who were familiar
with his voice all identified appellant’s voice on at least parts of the
tapes proferred by the Government. On this evidentiary basis, we hold that
the tapes were properly presented to the members for their authenticity
determination as required by Mil.R.Evid. 901(b)(5). SeeUnited
States v. Wilson, 115 F.3d 1185, 1188-89 (4th Cir. 1997).

Appellant’s remaining arguments against admitting
the audio tapes are also without merit. Mil.R.Evid. 104 gives discretion
to the trial judge as to the manner in which he makes preliminary determinations
concerning admissibility of evidence. SeeSliker, supra
at 499-500. We can find no other rule of evidence or procedure that requires
the judge to hear the tape before making a preliminary authenticity determination
under Mil.R.Evid. 901(a). Moreover, hearing the tapes and attempting to
determine their authenticity is not the preferred way for a judge to fulfill
his or her particular authenticity function. SeeRicketts v.
City of Hartford, supra. Finally, the existence of deletions
or suspected deletions from the tapes and gaps in the chain of custody
do not per se bar admission of the audio tapes. United States
v. Sandoval, supra (standard is that possibilities of misidentification
and adulteration be eliminated, not absolutely, but as a matter of reasonable
probability); seealsoUnited States v. Maxwell, 38
MJ 148, 152 (CMA 1993)(gaps in chain of custody go to weight afforded evidence,
not its admissibility). Accordingly, we conclude that the military judge
did not err in admitting evidence of the audio tapes for the members’ consideration
in this case.

The decision of the United States Army Court
of Criminal Appeals is affirmed.